The Third Circuit Holds That A Jury Can’t Infer Intent From Constitutionally Protected Silence

So often the difference between doing something normal and committing a crime is what’s in someone’s mind. White collar crimes turn on intent – mail fraud, wire fraud, securities fraud, and bank fraud all look to what was in the mind of the person accused of the crime.

Yet, intent is also a hard bit of evidence to secure. Unless there’s a smoking gun document – which is ever more likely in this age of email – there is no direct evidence of intent in most cases.

And, ultimately, what a person accused of a crime intended is a question for the jury. As an NACDL article on the topic notes, we know that Martha Stewart was thinking because a jury says we did.

The way a jury decides intent, therefore, is crucial. Which makes the Third Circuit’s decision in United States v. Waller so very interesting.

There, the Third Circuit reversed and remanded for a new trial because of the intent instruction used by the district court.

The trial court instructed the jury that:

Intent ordinarily may not be proved directly because there is not a way of fathoming or scrutinizing the operation of the human mind. However, you may infer a defendant’s intent from all of the surrounding circumstances. . . . You may also consider any statements made or omitted by the defendant, as well as all other facts and circumstances in evidence which demonstrate the defendant’s state of mind.

The jury heard this instruction, then found that the defendant had the requisite intent – Mr. Waller was found guilty.

The Third Circuit found that this instruction violated Mr. Waller’s constitutional rights.

The instruction contained the phrase “You may also consider any statements made or omitted by the defendant” – Mr. Waller’s counsel argued that this violated Mr. Waller’s right to remain silent.*

The Third Circuit just extended that holding to a trial court’s instructions.

Because the trial court’s instruction let the jury infer intent merely from Mr. Waller invoking his constitutional right not to talk when he was arrested, or not to speak in his own defense at trial, the instruction violated his rights.

* Doctrinally, there are a few distinct rights to remain silent. One is a Sixth Amendment right to counsel, which undergirds the requirement that a person be given Miranda warnings. The other right is a Fifth Amendment right to refuse to self-incriminate. There is also a Due Process right not to speak.